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Will Wisconsin's Patents Block Embryonic Stem Cell Research?

The stem cell article by Jennifer Washburn inWashburn nor Loring/Campbell articles discuss
the April 12, 2006 issue of the Los Angelesthat patent infringement suits against states
Times mentioned Jeanne Loring, anand state bodies (such as California's CIRM)
embryologist at the Burnham Institute in Laare likely to be heard in state court, not
Jolla: In 1999, Loring tried to launch afederal court, according to the Supreme Court
company to work with stem cells, but the firmdecision in Florida Prepaid
quickly collapsed when it couldn't raise thePostsecondary.Although there may be a
$100,000 in upfront fees the Wisconsinvisceral reaction to lash out against patents
foundation [WARF] charged.Washburn's articleperceived to be overbroad, the cautionary
did not mention an earlier article by Loringtale of NTP v. RIM suggests that sometimes
and co-author Cathryn Campbell, entitlednegotiation is the better path for
"Intellectual Property and Human Embryonicinfringement defendants. Further, Loring
Stem Cell Research," which appeared in 311Campbell mention the possibility of an
Science 1716 on March 24, 2006. Therein,interference with Plurion, although this most
Loring and Campbell mentioned the changinglikely would change only the identity of the
royalty fees charged by WARF in response to aowner of controlling patents. Separately,
"memo of understanding" (MOU) with theone recalls that the Thomson patents are
federal funding agency. Loring/Campbellabout creating stem cells from blastocysts;
mentioned the "SBIR paradox" as to funding ofthey are not about "cloning" [SCNT]
small businesses, which may be a problem,technology. To date, traditional methods for
but not one associated with patent law.Bothstem cell separation from blastocysts have
the Washburn and Loring/Campbell articlesfailed wherein SCNT is involved. There may
suggested that the WARF/Thomson patents wouldbe a question of enablement as to the Thomson
pose a long-term threat to stem cell science.patents for cases involving SCNT, which is
Washburn noted the position of thewhere the holy grail of patient-specific stem
Foundation for Taxpayer and Consumer Rights,cell lines resides.As a general proposition,
based in Santa Monica, which urgesthe state taxpayers underwriting efforts such
California's stem cell agency to challengeas Proposition 71 have the expectation that
the Wisconsin patents. In greater detail,money will be used for research, not to
the Santa Monica group stated: The stem celllitigate the patent positions of prior
institute faces a threat from a foundationresearchers. Extrapolating further, state
associated with the University of Wisconsinfunding to achieve patent positions could
[WARF], which claims that it is owedlead to a balkanization of research, in which
licensing fees because it holds patents onentities from individual states (such as
all human embryonic stem cells in the UnitedCalifornia, New Jersey, Maryland, Illinois,
States. John M. Simpson stated: "This is anConnecticut) are fighting one another, rather
outrageous raid on the treasury of Californiathan collaborating.Lawrence B. Ebert is a
based on over-reaching patents. No otherregistered patent attorney located in central
nation in the world recognizes them. TheyNew Jersey. He holds a Ph.D. from Stanford, a
are blocking vital research in the UnitedJ.D. from the University of Chicago,
States. I call on the stem cell institute tomaintains a blog at IPBiz.blogspot.com, and
challenge the patents' validity."Neither theis the author of LESSONS TO BE LEARNED FROM
Washburn nor Loring/Campbell articles discussTHE HWANG MATTER: ANALYZING INNOVATION THE
the possible research safe harbor created inRIGHT WAY, published in the Journal of the
the Hatch-Waxman Act and codified at 35 USCPatent & Trademark Office Society [88 JPTOS
271(e)(1). The breadth of this safe harbor239 (March 2006)]. Ezine draft submitted
was recently affirmed in the Supreme CourtApril 13, 2006.
decision of Merck v. Integra. Neither the



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